Ostia Med., Pc v Government Employees Ins. Co.
Annotate this CaseDecided on December 26, 2003
District Court Of Nassau County, First District,
OSTIA MEDICAL, PC, a/o COMRIE SOCORRO, Plaintiff,
against
GOVERNMENT EMPLOYEES INS. CO., Defendant.
HOSS MEDICAL SERVICES, PC, a/o ROSS LYNCH, INDEX NO. 14833/01 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
HOSS MEDICAL SERVICES, PC, a/o WILLIE JOHNSON, INDEX NO. 15828/01 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
HOSS MEDICAL SERVICES, PC, a/o NICOLE BLUME, INDEX NO. 15829/01 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
QUEENS BLVD MEDICAL, PC, a/o MICHAEL KHAKHAMOV, INDEX NO. 15832/01 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
HOSS MEDICAL SERVICES, PC, a/o VAILORIS CANELO, INDEX NO. 14837/01 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
CPT MEDICAL SERVICES, PC, a/o LILYA ZILBERMAN, INDEX NO. 15841/01 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
HOSS MEDICAL SERVICES, PC, a/o FREDDIE ESCOBAR, INDEX NO. 15843/01 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
HOSS MEDICAL SERVICES, PC, a/o WILLIE JOHNSON, INDEX NO. 15846/01 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
UNIVERSAL PSYCHOLOGICAL SERVICES, PC a/o BARBARA FYE, ALLA BRESLER, ANTHONY GRAFFEO and BEVERLY CLARKE, INDEX NO. 24306/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
HILDA-BLOOR MEDICAL, PC, a/o MIGUEL DEJESUS, INDEX NO. 24315/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
ALL HEALTH MEDICAL CARTE, PC a/o REGINALD BALTHAZAR, INDEX NO. 24319/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
HEMPSTEAD PAIN & MEDICAL SVCS., PC a/o DOLORES WASHINGTON, SUTTON AVIS HAUGHTON AVIS, MADGE COLVIL and CUPID COLVIL, INDEX NO. 24320/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
I.K. MEDICAL, PC, a/a/o HASIJE DANOVIC and ROLAND NEMET, INDEX NO. 24327/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
I.K. MEDICAL PC, a/a/o ROLAND NEMET and HASIJE DANOVIC, INDEX NO. 24333/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
MID ATLANTIC MEDICAL, PC, a/a/o OLGA BAEZ, INDEX NO. 24334/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
WOODSIDE PAIN MANAGEMENT, PC, a/a/o YOSELIN RODRIGUEZ and RAMON MONZON, INDEX NO. 24337/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
COMP. MENTAL ASSMNT & MED. CARE, PC, a/o CRAIG GOPIE and CYNTHIA CARDNERBRIM, INDEX NO. 32030/02 [FN1] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
E.N.A. MEDICAL SUPPLY INC., a/o VANESSE DIAZ MAHIPALSINGH and BARRY MCCLAIN, INDEX NO. 32032/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
BRIGHT MEDICAL SUPPLY CORP., a/o EWA WEGLARZ, MAYA SUYUNOVA and SEMKHO DAVIDOV, INDEX NO. 32033/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
ANTHONY S. DESANO, DC, a/o MARIA LACAYO, HERMENIA STARCHIA, LOIS NOWINSKI and BONNI ROBBINS, INDEX NO. 32039/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
ANTHONY S. DESANO, DC, a/o DENISE KOJAK LEE MARY NJOKU, CRISTOPHER GIACALONE, MICHAEL PAYAWAL and VIRGINIA HENNESSY, INDEX NO. 32040/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
CAPIO MEDICA, PC, a/o YURIY AGINSKIY, VLADISLAV ZOLOTAREVSKIY, VLADISLAV ZOLOTAREVS and ALEKSANDR GOLOVANEVSKY, INDEX NO. 32041/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
OSTIA MEDICAL, PC, a/o MARK MILLER and CHRISTINE RODRIGUEZ, INDEX NO. 32047/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
ALL HEALTH MEDICAL CARE, PC, a/o KHAY PINKHASOV and ROMAN MATATOV, INDEX NO. 32052/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
NORTHERN MEDICAL, PC, a/o ALEJANDRO RIOS and ELCHIN YUSUFOV, [*2]INDEX NO. 32055/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
KIM ACUPUNCTURE, PC, a/o GILDA NARVAEZ, INDEX NO. 32056/02 [FN2] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
CPT MEDICAL SERVICES, PC, a/o JOY TAYLOR and CRAIG GOPIE, INDEX NO. 32058/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
ARNOLD WEISMAN, DDS, a/o ALI RATIB, MARCO VALENCIANO, MARIA CASTANO and JOSE CASTANO, INDEX NO. 32059/02 [FN3] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO.,
[*3]Defendant(s)
KLM TRADING, LTD, a/o ELIZABETH RETMOR and ESTHER COBBS, INDEX NO. 32060/02 [FN4] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
LUSTER, INC., a/o BRYAN MEGHER, GULSHAN THANDI and DOROTHY SLAUGHTER, INDEX NO. 32064/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
OSTIA MEDICAL, PC, a/o JEANNIE GOLDSTON and GREGORY MOORE, INDEX NO. 32067/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
ALL HEALTH MEDICAL CARE, PC, a/o YAKUB MALAKOV and YOCHEVED CHEIN, INDEX NO. 32073/02 [FN5] [*4]Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
CPT MEDICAL SERVICES, PC, a/o ELISHA AJAYI, AMOS REECE, ELLA REECE and KECIA DALTON, INDEX NO. 32074/02 [FN6] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
NASSAU-SUFFOLK CHIROPRACTIC, PC, a/o RUANO IRAZEMA and ABIGAIL ORTIZ, INDEX NO. 32076/02 [FN7] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
EAST COAST MEDICAL CARE, PC, a/o ELIZABETH HERRERA, INDEX NO. 32077/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
BIG APPLE ACUPUNCTURE, PC a/o YSIDRO REYES, and YASMI GOMEZ, INDEX NO. 32082/02 [FN8] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
CPT MEDICAL SERVICES, PC, a/o NEMET ROLAND , INDEX NO. 32085/02 [FN9] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
EAST COAST PSYCHOLOGICAL, PC, a/o IVA WILSON, MARION LOCKHART, FRANDIE LEFTWICH, PAULINA ZUNILDA and ALAN LARIOS, INDEX NO. 32086/02 [FN10] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
CENTRAL AVENUE CHIROPRACTIC, PC a/o FRED TILCIO and ERIC BASKERVILLE, INDEX NO. 32087/02 [FN11] Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
NORTHERN MEDICAL, PC, a/o LISA FOX and VANESSA SADANO, INDEX NO. 32093/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
RELIABLE MEDICAL SERVICES, PC, a/o ELAINE TAYLOR, INDEX NO. 32095/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
BIG APPLE ACUPUNCTURE, PC, a/o, BRYANT SANCHEZ, INDEX NO. 32097/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
TRANSCO TRANSPORTATION SVCS, INC., a/o [*5]ERNESTINA COLLADO, YSIDRO REYES and YASMIN GOMES, INDEX NO. 32108/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
LUSTER INC., a/o MARTINZA CHARLES, INDEX NO. 32109/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
UNIVERSAL PSYCHOLOGICAL SERVICES, PC a/o CUERIN FERNANDERS, INDEX NO. 32114/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
CENTRAL AVENUE CHIROPRACTIC, PC, a/o MIRIAM MELO LINA KING, INDEX NO. 32115/02 Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
CPT MEDICAL SERVICES PC, a/o CHARLOTTE DODART FLORRIE MILLS, VLADIMIR VILENSKIY and ELEN GORODETSKY, INDEX NO. 32117/02 [*6]Plaintiff(s)
against
GOVERNMENT EMPLOYEES INS. CO., Defendant(s)
INDEX NO. 32065/02
Joel K. Asarch, J.
The following named papers numbered 1 to 4 were submitted on this Notice of Motion on July 18, November 5, November 20 and November 24, 2003:
Papers numbered
Notice of Motion and Affidavits Annexed 1-2
Order to Show Cause and Affidavits Annexed
Answering Affidavits 3
Reply Affidavits 4
Factual Background
The forty-eight (48) cases listed in the above caption have been joined for the purposes of the instant motion only. The plaintiffs (hereinafter "plaintiff" or "medical provider") are all medical providers, being represented by the same law firm, and the defendant in all forty-eight (48) cases is Government Employees Insurance Company (hereinafter "GEICO" or "insurance carrier") . In all of the actions, the plaintiff is seeking recovery of no-fault benefits from GEICO, due to medical services provided to the plaintiff's assignors, for injuries allegedly resulting from various motor vehicle accidents.
The plaintiff moves, pursuant to CPLR 3103(a), for a protective order vacating GEICO's notice to compel the examination before trial (hereinafter "EBT") of the medical provider. The plaintiff claims that as a matter of law, the defendant is not entitled to an EBT of the plaintiff. In the alternative, the plaintiff requests that if the Court should deny the plaintiff's motion for a protective order, then the Court order supervised discovery, pursuant to CPLR 3104. GEICO opposes the plaintiff's motion and cross-moves for an order granting costs and sanctions.
The legislature's intent in enacting the no-fault law was to ensure that every automobile [*7]accident victim be compensated for substantially all of his or her basic economic loss (i.e., first party benefits [FN12]) promptly, without regard to fault and to significantly reduce the number of automobile personal injury cases litigated in the courts (see, Johnson v. Hartford Ins. Co., 100 Misc.2d 367, 418 N.Y.S.2d 1009 [Sup Ct Monroe County 1979]; Licari v. Elliot, 52 N.Y.2d 230 [1982]; Zlatnick v. GEICO, N.Y.L.J. 12/8/03, p. 21, col.1, 2003 WL 22849608, 2003 NY Slip Op. 23870 [Civil Court, Queens County], citing Medical Society of State of New York v. Serio, 100 N.Y.2d 853 (2003). Contrary to the legislature's intent, however, in a large number of cases, prompt compensation is not occurring. Rather, medical providers, who have been assigned the injured victim's right to first party benefits are resorting to litigation in New York courtrooms for recovery of first party benefits. In recent years, the Nassau County District Court, as well as many courts of limited jurisdiction in New York State, have become swamped with no-fault litigation for the recovery of first party benefits. Due to the recent influx of no-fault litigation, this Court has had to tackle numerous first impression, no-fault substantive and procedural issues. In fact, this Court has set up no-fault discovery conference calendars, to help ease the burden on the Court and to try to promote the intent of the legislature (i.e., prompt payment and/or resolution of no-fault claims).
The Court finds the legal issues presented in the parties' respective motion papers to be as follows:
(1)Is an insurance carrier entitled to an EBT of a medical provider under the CPLR and the UDCA?
(2)Is an insurance carrier entitled to an EBT of a medical provider, as well as answers to [*8]interrogatories in a No-Fault Action?
(3)Is an insurance carrier entitled to an EBT of a medical provider, under the No-Fault Regulations, if it failed to request an oral Examination Under Oath under the New York Compilation of Codes, Rules and Regulations?
(4)Is the insurance carrier estopped from requesting an EBT of a medical provider because the insurance carrier failed to seek additional verification, under the New York Compilation of Codes, Rules and Regulations?
(5)Does the burden of proving "Medical Necessity" effect the insurance carrier's right to an EBT of a medical provider?
(6)Do "Special Circumstances" exist, thereby permitting the plaintiff to produce a medical consultant, rather than the medical provider for the EBT?
(7) Is Court-supervised discovery necessary?
(8) Is the insurance carrier entitled to sanctions and costs?
II. LEGAL ISSUES AND ANALYSIS
A protective order is designed to guard against disclosure abuses. CPLR 3103(a) states, in relevant part, that:
" ... The Court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."
Thus, pursuant to the CPLR and UDCA, a protective order may be used, no matter what disclosure device is implicated. In the instant case, the disclosure device at issue is an EBT of a medical provider in a no-fault case. In addition, by its own terms, the statute allows a protective order to be moved for "at any time" (CPLR 3103[a]). When deciding whether to grant a protective order, the Court must balance the importance of the information sought against the degree of prejudice the disclosure device would impose (see, Cynthia B. v. New Rochelle Hospital Medical Center, 60 N.Y.2d 452 [1983]).
The Court can regulate discovery, pursuant to a protective order, by directing the time, order, place and questions to be asked in an EBT, or dictating the disclosure devices to be used or combination thereof, and even by defraying the costs of a party's participation in the disclosure (see, [*9]Church E. Dwight Co. Inc. v. Uddo & Associates, Inc., 159 A.D.2d 275, 552 N.Y.S.2d 277 [1st Dept 1990]; Weeks Office Products, Inc. v. Chemical Bank, 178 A.D.2d 113, 577 N.Y.S.2d 10 [1st Dept 1991]).
Moreover, the Court has broad discretion in limiting or regulating the use of disclosure devices (see, Brignola v. Pe-Fei Lee, M.D. P.C., 192 A.D.2d 1008, 597 N.Y.S.2d 250 [3d Dept 1993]).
(1)Although Pursuant to the CPLR and UDCA an Insurance Carrier is Entitled to an EBT of a Medical Provider in No-Fault Cases, a Condition Precedent to Such EBT in Cases Involving the Issue of "Medical Necessity" is a Showing by the Insurance Carrier that it Issued a Timely Denial of the No-Fault Claim Based on the Ground of "Medical Necessity".
The plaintiff claims that the defendant insurance carrier is not entitled to an EBT of the medical provider under the CPLR and the UDCA. The plaintiff's counsel asserts that the defense counsel's demand for an EBT of the medical provider is in violation of CPLR 3101(a) because the two prong test set forth in CPLR 3101(a) cannot be met. The plaintiff's position is that an EBT of the medical provider is not material and necessary to the defense of no-fault actions. The plaintiff feels that the defendant is not seeking discovery, but rather the defendant's true motive is simply to harass and overburden medical providers with useless and duplicative depositions and to interfere with a medical provider's ability to run a medical practice. The plaintiff's counsel supports its position by claiming that in every action commenced by the plaintiff's law firm against the defendant, the defendant has routinely served a demand for an EBT, regardless of the type of claim, or the amount of the claim. In further support of its argument, plaintiff's counsel states that the relatively simple issues existing in an action for no-fault benefits do not warrant an extensive and overly burdensome EBT of a medical provider. The plaintiff's counsel also claims that the expenses in preparing for and appearing at a lengthy EBT far outweigh the potential award in most actions, which are of relatively small amounts. In essence, the plaintiff's counsel asserts that the medical providers will never recover their fees, if required to attend useless depositions.
The insurance carrier claims that it is entitled to an EBT of the plaintiff under the CPLR and UDCA. The defendant's counsel asserts that the insurance carrier is not trying to harass the plaintiff, but rather an EBT of the medical provider is an essential discovery device for gathering information, material and necessary to the defense of no-fault law suits. The insurance carrier's counsel claims that, after a review of the carrier's records, no medical provider represented by the plaintiff's law firm has ever appeared for an EBT requested by the defendant's firm, despite a claim by defense counsel that the plaintiff's law firm has served approximately two thousand four hundred and thirty six (2,436) law suits upon the defendant in the year 2002. The defendant's counsel suggests that the plaintiff simply has no intention of ever complying with the CPLR, by producing a medical provider for an EBT.
UDCA §1101(a) requires that the Nassau County District Court adopt all of the procedures [*10]set forth in the CPLR with regard to disclosure.
CPLR 3101 states, in pertinent part, that:
"(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:
(1) a party, or the officer, director, member, agent or employee of a party;
(2) a person who possessed a cause of action or defense asserted in the action; ..."
Accordingly, pursuant to CPLR 3101(a), in the Nassau County District Court there shall be "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof". The words "material and necessary" should be interpreted liberally to "require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test to determine if the information sought is material and necessary is one of usefulness and reason" (see, Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406- 407 [1969]; see also U S Ice Cream Corp. v. Carvel Corp., 190 A.D.2d 788, 593 N.Y.S.2d 861 [2d Dept 1993]). The term "necessary" has been construed to mean "needful" rather than "indispensable" (see, Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, supra). "[I]f there is any possibility that the information was sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered 'evidence material ... in the prosecution or defense'" (In re Comstock's Will, 21 A.D.2d 843, 844, 250 N.Y.S.2d 753, 755 [4th Dept 1964]). However, the Allen case makes clear that disclosure extends to all relevant information calculated to lead to relevant evidence, not just information that can be used as evidence in chief (see, CPLR 3101, Siegel, Practice Commentaries McKinney's Cons. Laws of NY, Book 7B, CPLR c3101:7, at 18 citing West v. Aetna Casualty and Surety Co., 49 Misc.2d 28, 266 N.Y.S.2d 600 [1965] mod'd. 28 A.D.2d 745, 280 N.Y.S.2d 795 [3d Dept 1967]; see also Wiseman v. American Motor Sales, Corp., 103 A.D.2d 230, 479 N.Y.S.2d 528 [2d Dept 1984]). "If the data elicited is within the broad scope of CPLR 3101(a) as construed in the Allen case, the excursion should be called a 'relevant inquiry'. That would leave [the term] 'fishing expedition' to describe the inquiry that goes beyond that extended compass ... " (Siegel, Practice Commentaries McKinney's Cons. Laws of NY, Book 7B, CPLR c3101:8, at 18). Furthermore, matters relating to disclosure lie within the broad discretion of the trial court, as it is in the best position to determine what is material and necessary (see, Allen v. Crowell-Collier Publishing Co., supra; see also, Anderson v. Cornell University, 225 A.D.2d 946, 638 N.Y.S.2d 852 [3d Dept 1996]).
Applying the principles established in the Allen case to the issue of an insurance carrier's right to an EBT of a medical provider in a no-fault case, the Court finds that provided certain conditions are met by an insurance carrier, the carrier is entitled to an EBT of a medical provider. The Court of Appeals has clearly held that, pursuant to the no-fault regulations, in a case in which no additional verification is timely sought, an insurance carrier must pay or deny a claim of no-fault [*11]benefits within thirty (30) days from the receipt of a claim or be precluded from interposing a defense to the denial of the claim, with limited exceptions (see, Presbyterian Hospital v. Maryland Casualty Co., 90 N.Y.2d 274 [1997]). In the case of a defense of "medical necessity", the Courts have held a medical provider is precluded from raising a defense of "medical necessity" where the denial was not timely and that summary judgment in favor of the medical provider is appropriate in such situations, provided the plaintiff submits proper proof of the claim and the amount of the loss (see, Presbyterian Hospital v. Maryland Casualty Co., supra.; Rombom v. Interboro, 186 Misc.2d 847, 721 N.Y.S.2d 474 [NY Sup App Term 2000]). Thus, when the insurance carrier has failed to issue a timely denial, no further discovery, which includes an EBT of the medical provider, is permissible on any defense, except if the insurance carrier's defense falls within limited exceptions. The limited exceptions set forth in the Presbyterian case are where untimely denials are of no consequence because the insurer is not required to pay the claim and where the claim is ultimately deemed invalid (see, Presbyterian v. Maryland, supra). Such situations include, inter alia, fraud and a lack of coverage defense based upon a belief that the alleged injury does not arise out of the insured accident (see, Central General Hospital v. Chubb Group of Insurance Companies, 90 N.Y.2d 195 [1997]; Mount Sinai Hospital v. Triboro Coach, Inc., 263 A.D.2d 11, 699 N.Y.S.2d 77 [2d Dept 1999]).
If an insurance carrier has made a timely denial, based upon "medical necessity", then its objective in seeking an EBT of the medical provider is not a means of harassing the medical provider, but rather the insurance carrier is trying to obtain relevant information on its defense of "medical necessity". Certainly in cases where an insurance carrier timely denied the no-fault claim based upon the ground of "medical necessity", the carrier is entitled to explore why the medical provider or treating physician determined the treatment to be necessary. However, if an insurance carrier seeks an EBT of a medical provider to inquire about the "medical necessity" of the treatment provided to the plaintiff' s assignor when the insurance carrier has failed to timely deny the medical provider's claim, then the motive for such request is questionable. The Court must also add, although not raised in the plaintiff's papers, even if an insurance carrier has timely denied the medical provider's claim based on "medical necessity", a carrier's motive for taking an EBT of a medical provider who performs scientific or objective testing of its assignor, due to a determination of "medical necessity" by the assignor's treating physician, must also be questioned.
Furthermore, the Court rejects the plaintiff's contention that the issues concerning "medical necessity" for treatment in no-fault cases are simple, thereby obviating the need for an EBT of the medical provider (see, Albatros Medical PC v. GEICO, 196 Misc.2d 656, 766 N.Y.S.2d 309 [NY City Civil Ct 2003]). In Albatros, the Court held that a medical provider is required to submit to an EBT in a no-fault case.
Lastly, any argument by the plaintiff that an EBT of a medical provider in some cases outweighs the potential award is unpersuasive. The Insurance Law allows a medical provider to arbitrate its no-fault claim and take advantage of the simplified procedures involved in arbitration (see, Ins. Law §5106[b]; 11 NYCRR 65.17). Thus, the plaintiff had a less inconvenient and less expensive forum in which to resolve its dispute. The plaintiff did not opt to arbitrate its claim. [*12]Rather, the plaintiff elected to proceed by way of litigation in the Nassau County District Court and thus it must comply with the discovery procedures set forth in the CPLR and the UDCA (see, UDCA §1101[a]; CPLR 3101; see also, Albatros Medical P.C. v. GEICO, supra. ["Plaintiff having elected to proceed by way of litigation in the courts, must comply with CPLR Article 31. In rejecting the expeditious and economical option of arbitration, plaintiff cannot now seek to use the rules of arbitration in the courts."].
Accordingly, this Court holds that, provided certain conditions are met by an insurance carrier, a carrier is entitled to an EBT of a medical provider pursuant to the UDCA and the CPLR. A condition precedent to such EBT in cases involving the issue of "medical necessity" is a showing by the insurance carrier, that it issued a timely denial of the no-fault claim, based on the ground of "medical necessity". In contrast, an insurance carrier is entitled to an EBT on a fraud ground and/or a lack of coverage ground, whether or not a timely denial was issued.
In view of the foregoing, the plaintiff's motion for a protective order vacating the defendant's notice of an EBT of the medical provider shall be granted on any case in which there was not a timely denial based upon "medical necessity", unless the insurance carrier, in good faith can set forth a defense of fraud or lack of coverage.
Within thirty (30) days of the date of this decision, on all forty-eight (48) cases, the defendant shall provide this Court with a showing of a timely denial, based on "medical necessity" or submit an affirmation setting forth in good faith a need for the EBT, based upon a defense of fraud or lack of coverage. Such EBTs shall be scheduled within thirty (30) days of such showing. As it has in the past, this Court will entertain the option of holding such EBTs at the medical provider's offices so as to reduce the inconvenience to such provider.
Notwithstanding the foregoing, in those cases where a disclosure stipulation has been entered into between the parties providing for the examination under oath of the plaintiff (to wit: in index numbers 15828/01; 15846/01; 24320/02; 32041/02; 32047/02; 32058/02; 32059/02; 32067/02; 32077/02; 32087/02; 32097/02 and 32115/02), the Court will not disturb the parties' agreement. Such agreed upon deposition shall proceed and be held within forty five days (45) from the date of service of a copy of this decision and Order upon the plaintiff's counsel.
(2)An Insurance Carrier in a No-Fault Action May Serve Interrogatories and Conduct an EBT of a Medical Provider, Provided Said Disclosure Devices are Not Repetitive.
The plaintiff claims that the insurance carrier's request for an EBT is merely duplicative of the interrogatories already requested and the plaintiff's answers to the interrogatories provide the insurance carrier with all the information that it requires for the defense of the instant claim. The insurance carrier claims that the interrogatories are mainly directed to the issues of the plaintiff's licensing and billing particulars. The insurance carrier further claims that while documents are attached to the plaintiff's interrogatories, a number of these documents are useless without an EBT [*13]of the medical provider who prepared the documents.
CPLR 3130 makes interrogatories and depositions mutually exclusive without leave of Court if interrogatories are served, in actions for damages for (1) injury to property, (2) personal injury or (3) wrongful death based solely on a cause of action for negligence. No such statutory restriction applies in a no-fault case. However, the Courts will not tolerate unwarranted repetitive uses of disclosure devices, such as multiple depositions or interrogatories (see, Blittner v. Berg and Dorf, 138 A.D.2d 439, 525 N.Y.S.2d 858 [2d Dept 1988]). Moreover, although the CPLR generally permits a party to utilize interrogatories and depositions, a party should complete one discovery device before conducting another one (see, Zlatnick v. GEICO, supra. and the cases cited therein "Only when the first chosen discovery device does not satisfactorily yield information can a party utilize the other discovery device," Id.). Thus, an insurance carrier should not be entitled to serve interrogatories and an EBT notice in a "knee-jerk" reaction to every no-fault lawsuit without demonstrating why responses to written interrogatories were somehow lacking.
In the instant cases, it is not clear whether the EBT demand and the interrogatories were served upon the plaintiff at the same time. The plaintiff apparently has answered all of the interrogatories. The defendant's interrogatories consisted of twenty-four (24) questions. The interrogatories demanded answers and required documents to be attached. Contrary to the defendant's contentions, questions four (4) through nine (9) are not merely licensing and billing questions. These questions request, inter alia, what diagnostic tests were performed and any notes and reports taken concerning the medical treatment.
Although questions four (4) through nine (9) are directed at the medical treatment of the plaintiff's assignor and may indeed be duplicative of questions asked of a medical provider at an EBT, said EBT would certainly encompass additional questions on the issue of "medical necessity"and on the medical treatment provided to the plaintiff's assignor. Thus, this Court does not find the deposition of the medical provider to be merely repetitive of the interrogatories. Furthermore, in these cases, the defendant's counsel asserts that an EBT of the medical provider is necessary to explain the documents (i.e., notes and records) attached to the plaintiff's interrogatories. Thus, in the cases before this Court, unlike the Zlatnick case, the insurance carrier has articulated the problem with the plaintiff's responses to the defendant's interrogatories and demonstrated the need for an EBT.
Accordingly, the plaintiff's motion for a protective order, vacating the defendant's notice for an EBT on the grounds of a repetitive use of a disclosure device is denied. However, repetition of questions may, in an appropriate circumstance, result in sanctions for frivolous conduct.
(3/4)An Insurance Carrier Involved in Civil Litigation for the Recovery Of No-Fault Benefits is Not Precluded From Requesting an EBT of a Medical Provider Because the Insurance Carrier Failed to Request an Examination Under Oath or Additional Verification as Permitted Under the New York Compilation of Codes Rules and Regulations.
[*14]
The plaintiff asserts that an insurance carrier waives its right to an EBT of the medical provider under the New York Compilation of Codes, Rules and Regulations [hereinafter "NYCRR"], when an insurance carrier fails to request an examination under oath (hereinafter "EUO") of a medical provider within thirty (30) days of receipt of the plaintiff's no-fault claim. The plaintiff further claims that the defendant is trying to frustrate the purpose of the no-fault law by treating the plaintiff as an adversary in violation of the NYCRR. Moreover, the plaintiff claims that the insurance carrier waives its right to an EBT because it was required to request any additional verification from the plaintiff, including documentation concerning "medical necessity", within ten (10) business days (for documentation) or thirty (30) calendar days (for an examination) of receipt of the claim by the insurance company. The defendant's position is that the plaintiff's arguments are frivolous with simply no basis in law.
Prior to April 5, 2002, the NYCRR did not require an injured person or assignee to attend an "EUO' (see, 11 NYCRR former 65.12; Medical Soc. of State of NY, Inc. v. Levin, 185 Misc.2d 536, 712 N.Y.S.2d 745 aff'd. 280 A.D.2d 309, 723 N.Y.S.2d 133 [1st Dept 2001]). The current regulations, 11 NYCRR 65-1.1, effective April 5, 2002, do require a claimant to submit to an "EUO" "as may reasonably be required". This Court is not certain what regulation was in effect at the time of all of these claims. Regardless, however, of what regulation was in effect, any argument that an insurance carrier's failure to request an "EUO"or to seek additional verification under the NYCRR, thereby precludes an insurance carrier from requesting an EBT of a medical provider in a no-fault litigation, is without merit (see, Albatros Medical P.C. v. GEICO, supra). The new regulations cannot be used for any claim retroactively to require an EUO (see, Bronx Medical Services P.C. ex rel. Rivera v. Lumbermans Mutual Cas. Co., 2003 WL 21402045, 2003 Slip Opinion 51022(u) [Appellate Term, June 2003]). Moreover, under the new regulation, there is no discovery prohibition if litigation is chosen by a medical provider to recover no-fault benefits. Once again, the Court must state that the plaintiff elected to proceed by way of litigation in the Nassau County District Court and thus, it must comply with the discovery procedures set forth in the CPLR and the UDCA (see, UDCA §1101[a]; CPLR 3101; see also Albatros Medical P.C. v. GEICO, supra).
Accordingly, the portion of the plaintiff's motion for a protective order, vacating the defendant's notice of EBT, based upon the grounds that the insurance carrier failed to request an EUO or additional verification as permitted under the NYCRR is denied, as without merit.
(5)The Burden of Proving "Medical Necessity" Does Not Affect the Defendant' s Right to Request an EBT of A Medical Provider.
The plaintiff claims that it does not have to prove "medical necessity" and that "medical necessity" is an affirmative defense to be proved by the defendant. The plaintiff further claims that no "medical necessity" questioning should be allowed until the defendant is compelled to produce a rebuttal witness who can authoritatively testify as to a lack of "medical necessity". The defendant claims that the issue of "medical necessity" is an issue in the case, regardless of who bears the burden. [*15]
The Appellate Term has held that the burden of establishing whether a medical test performed by a medical provider on the injured party was a "medical necessity" is on the medical provider (see, Shtarkman Neurologist, P.C. as assignee of Marian Copeitiro v. Allstate Insurance Company, 2002 WL 32001277, 2002 Slip Op. 505684 [Appellate Term, 9th and 10th Jud Dists 2002]). Notwithstanding the above, a party may obtain disclosure regardless of which party has the burden of proof as to the issues sought to be disclosed (see, CPLR 3101; see also, Baxter v. Orans, 63 A.D.2d 875, 405 N.Y.S.2d 470 [1st Dept 1978]).
Accordingly, the portion of the plaintiff's motion for a protective order for vacatur of the defendant's notice of EBT, upon the ground that the defendant has the burden of proving "medical necessity", is hereby denied without merit.
(6)"Special Circumstances" Do Not Exist Permitting the Plaintiff to Produce a Non-Party Medical Consultant Rather Than the Medical Provider at the EBT.
The plaintiff claims that where "special circumstances" exist, the examining party may be permitted to designate the individual to appear at an EBT. The plaintiff's argument to support "special circumstances" is based upon an assumption by the plaintiff that the defendant's response to the plaintiff's EBT notice would be to produce a "claims representative", rather than the individual(s) who actually performed the independent medical exam (hereinafter "IME") or peer review. The plaintiff further claims that if the plaintiff must produce the medical provider for an EBT, then the defendant must produce the individual(s) who actually performed the IME or peer review at an EBT of the defendant. The defendant's position is that the plaintiff fails to show "special circumstances" that would allow for the deposition of a non-party medical consultant. It should be noted that CPLR 3101(a)(4) is relevant to the examination of a non-party witness.
The Court is not certain whether, in the instant cases, EBTs have been requested of the insurance carrier, and/or whether the insurance carrier has objected to said EBTs. The Court is aware that in many of these cases, disclosure stipulations have been entered into providing for depositions of physicians, claims examiners and others with knowledge of the facts. As to these stipulations which have been "so ordered" by the Court, the Court will uphold the agreements. In those cases where no stipulations have been entered into, the issue of whom the insurance carrier must produce at an EBT must await a ripe issue and proper motion. The issue before this Court, on this motion, is whom may be produced at an EBT of the medical provider.
Absent compelling circumstances a party is entitled to produce the testifying witness of its choice ( see, Fernandez v. St. John's Episcopal Hospital, South Shore Division, 70 A.D.2d 627, 416 N.Y.S.2d 638 [2d Dept 1979]). When additional persons are sought to be deposed, the examining party must carry the burden of demonstrating that the person previously deposed possessed insufficient knowledge or was otherwise inadequate (see, Fernandez v. St. John's Episcopal Hospital, South Shore Division, supra). Thus, pursuant to the case law, the medical provider may produce the testifying witness of its choice. However, this witness must have adequate knowledge [*16]of the treatment and testing of the medical provider's assignor. In the case of an individual medical provider, the only individual with sufficient knowledge to be deposed regarding the treatment of the assignor would be the actual medical care provider. In the case of a corporate entity, any one of the treating physicians may be produced.
In these cases, after a deposition of the plaintiff has been conducted, and in those rare cases where the defendant believes the individual produced by the corporate medical entity was insufficient, the defendant may submit an affidavit on notice to the Court requesting an additional EBT. If the facts warrant, the Court will require the plaintiff to pay for the cost of the additional EBT.
In view of the foregoing, the plaintiff's motion requesting that a non-party medical consultant appear at the EBT for the medical provider, is denied.
(7)Court Supervised Discovery is Not Warranted in this Case.
The plaintiff requests Court ordered discovery pursuant to CPLR 3104, but sets forth no legal argument for the need for said request. The insurance carrier asserts that supervised discovery is not necessary in the instant case and would only unduly burden the Court.
CPLR 3104(a) states, in relevant part, that:
"Upon the motion of any party or witness on notice to all parties or on its own initiative without notice, the court in which an action is pending may by one of its judges or a referee supervise all or part of any disclosure procedure."
The supervisory power, given to the Court by CPLR 3104(a) should be exercised sparingly and only when there is a "special circumstance" (see, DiGiovanni v. Pepsico, Inc., 120 A.D.2d 413, 502 N.Y.S.2d 23 [1st Dept 1986]). The Court does not find court-ordered supervision to be warranted at this time as "special circumstances" have not been shown, nor has the plaintiff even demonstrated that supervised discovery would be helpful.
(8)The Defendant is Not Entitled to Sanctions and Costs.
The defense attorney claims that sanctions are necessary under 22 NYCRR 130-1.1 because the plaintiff has engaged in frivolous conduct. The plaintiff opposes the defendant's request for sanctions and claims that it has the procedural right under the CPLR and UDCA to challenge the propriety of the defendant's EBT demands.
22 NYCRR 130-1.1(a) provides, in pertinent part, that:
[*17]
The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart.
22 NYCRR 130-1.1(c) defines conduct as frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the Court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
The Court does not find the plaintiff's motion for a protective order to be frivolous, as the plaintiff's arguments are not completely without merit, undertaken to delay or assert material factual statements that are false. Sanctions are simply not warranted in this case.
Accordingly, the defendant's request for sanctions pursuant to 22 NYCRR 130-1.1 is hereby denied.
This constitutes the decision and order of this Court.
E N T E R:
DISTRICT COURT JUDGE
Dated:December 26, 2003
CC:Baker & Barshay, LLP
[*18]
Law Offices of Teresa M. Spina
Caption endnotes:
Decision Date: December 26, 2003
Footnotes
Footnote 1: By order dated September 18, 2003, summary judgment was granted in favor of plaintiff and the defendant on the third and fourth causes of action
Footnote 2: Action discontinued by stipulation
Footnote 3: By order dated October 2, 2003, summary judgment was granted in favor of plaintiff defendant on the third through sixth and ninth and tenth causes of action
Footnote 4: By order dated September 18, 2003, summary judgment was granted in favor of the plaintiff the defendant
Footnote 5: By order dated September 22, 2003, summary judgment was granted in favor of plaintiff on the first and second causes of action, and in favor of defendant dismissing the third and fourth causes of action
Footnote 6: By order dated November 6, 2003, summary judgment was granted in favor of plaintiff the defendant on the first and second causes of action
Footnote 7: Action discontinued all assignors except Nohemy Marquez
Footnote 8: Action discontinued by letter
Footnote 9: Dismissed by Order dated December 3, 2003
Footnote 10: By order dated October 3, 2003, summary judgment was granted in favor of plaintiff defendant on the first, second, seventh and eighth causes of action
Footnote 11: By order dated September 29, 2003, summary judgment was granted in favor of plaintiff defendant on first and second causes of action
Footnote 12: "Party Benefits" are basically a reimbursement to a person for "basic economic loss" on account of personal injury arising out of the use or operation of a motor vehicle, less certain deductions prescribed by statue (Insurance Law § 5102[b]).
"First party benefits" means payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, less:
(1) Twenty percent of lost earnings computed pursuant to paragraph two of subsection (a) of this section
(2) Amounts recovered or recoverable on account of such injury under state or federal laws providing social security disability benefits, or workers' compensation benefits, or disability benefits under article nine of the workers' compensation law, or medicare benefits, other than lifetime reserve days and provided further that the medicare benefits utilized herein do not result in a reduction of such person's medicare benefits for a subsequent illness or injury.
(3) Amounts deductible under the" applicable insurance policy " (Insurance Law § 5102[b]).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
